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Moving Forward on Legal Aid Research on Needs and Innovative Approaches

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Moving Forward on Legal Aid Research on Needs and Innovative Approaches INFLUENCE. LEADERSHIP. PROTECTION. Moving Forward on Legal Aid Research on Needs and Innovative Approaches Aide juridique – La voie du progrès Recherche sur les besoins actuels et les approches innovatrices Melina Buckley, LL.B., Ph.D. Report for the Canadian Bar Association Rapport pour l’Association du Barreau canadien Juin 2010/June 2010 Author: Melina Buckley, LL.B., Ph.D. Executive Summary: Vicki Schmolka, LL.B. Staff Liaison: Gaylene Schellenberg, Staff Lawyer, Legislation and Law Reform Production: Lorraine Prezeau ISBN: 1-897086-88-1 © Canadian Bar Association 500 – 865 Carling Avenue, Ottawa, ON K1S 5S8 613-237-2925 www.cba.org June 2010 * This paper was prepared by Dr. Melina Buckley for the Canadian Bar Association. It has not been approved as official CBA policy. The paper is current until April 2009. Moving Forward on Legal Aid Research on Needs and Innovative Approaches Aide juridique – La voie du progrès Recherche sur les besoins actuels et les approches innovatrices Melina Buckley, LL.B., Ph.D. Report for the Canadian Bar Association Rapport pour l’Association du Barreau canadien Juin 2010/June 2010 TABLE OF CONTENTS MOVING FORWARD ON LEGAL AID Research on Needs and Innovative Approaches by Melina Buckley, LL.B., Ph.D. EXECUTIVE SUMMARY ................................................................................ 1 SOMMAIRE EXÉCUTIF ............................................................................... 15 I. INTRODUCTION ............................................................................. 31 II. OVERVIEW ....................................................................................... 35 III. RESEARCH ON LEGAL AID NEEDS ................................................ 37 A. General Findings about Civil Legal Needs........................................... 38 B. Unmet Criminal Legal Aid Needs ......................................................... 41 C. Quantifying Unmet Legal Aid Needs .................................................... 45 D. Mapping the Availability of Legal Services .......................................... 46 E. Other Approaches to Identifying and Measuring Specific Legal Aid Needs ............................................................................................... 49 F. Trends Affecting Legal Aid Need ......................................................... 50 G. Understanding the Cost of Inadequate Legal Aid and Measuring Funding Requirements ........................................................ 52 IV. LEGAL AID POLICY ......................................................................... 55 A. Legal Aid Program Objectives ............................................................. 55 1. Broadening the Policy Framework ................................................ 57 2. The Right to Publicly-Funded Legal Aid: Constitutional and Statutory Entitlements ........................................................... 60 3. Expanding Eligibility ...................................................................... 62 B. Toward a Principled National Legal Aid Policy .................................... 64 C. Quality Assurance ................................................................................... 66 D. Developing and Supporting Legal Aid Lawyers .................................. 68 E. Fostering Ongoing Innovation .............................................................. 71 i V. INNOVATIONS IN SERVICE PROVISION ........................................ 77 A. Developments in the Provision of Legal Information and Advice ..... 78 1. Use of Technology ......................................................................... 78 2. Increased Use and Specialization of Paralegals and Other Legal Aid Personnel ....................................................................... 83 3. Outreach Programs ........................................................................ 84 4. Enhanced Points of Entry .............................................................. 86 B. A Review of Recent Experience with Various Delivery Models.......... 90 1. Expanded Duty Counsel ................................................................ 90 2. Staff Offices .................................................................................... 92 3. Lessons from the Experience of Community-Based Legal Clinics .............................................................................................. 95 4. Law School Legal Aid Programs ................................................... 98 C. The Movement towards Comprehensive and Integrated Service Delivery.................................................................................... 100 1. Multidisciplinary Practices: Integrating Legal, Social and Health Services ............................................................................. 100 2. Increased Coordination between Agencies Serving the Low-Income Community ............................................................. 102 3. A Holistic Approach to Criminal Legal Aid Services ................. 104 D. Strategies to Meet the Needs of Underserved Communities ......... 106 1. Legal Services for the Aboriginal Community ........................... 106 2. Other ............................................................................................. 107 VI. OTHER MECHANISMS FOR ENHANCING ACCESS TO LEGAL SERVICES ............................................................................109 A. Access to Justice Communities .......................................................... 109 B. Expanded Pro bono Programs ........................................................... 111 C. Underexplored Alternatives ................................................................ 113 VII. CONCLUSION ................................................................................115 A. Summary of Recent Research and Trends .......................................... 115 B. Overview of CBA Policy and Projects on Legal Aid ........................... 116 C. Policy Renewal Proposals ..................................................................... 121 ii Moving Forward on Legal Aid Melina Buckley 1 EXECUTIVE SUMMARY I. Introduction This is a summary of an extensive research paper prepared by Melina Buckley, LL.B., Ph.D., for the Canadian Bar Association. Moving Forward on Legal Aid: Research on Needs and Innovative Approaches presents new research findings, profiles innovations in legal aid service delivery in Canada and elsewhere and suggests future directions to improve legal aid and access to justice generally. This summary highlights key elements of the Dr. Buckley’s research and analysis. Please refer to the paper for the details. II. The Rough Road to Here Publicly-funded legal aid programs started in Canada almost 40 years ago. Their purpose was to provide the poorest residents with access to a lawyer and the justice system. It was generally recognized that Canada could not claim to be a fair and just society if some of its members were denied an opportunity to seek justice. Early ideals have, however, given way to ever tightening budget realities. Legal aid programs do not enjoy the same public profile as government-run health care or education programs. As a result, shrinking government support for legal aid has been largely a “silent crisis.” The people most deeply affected by the shrinkage in legal aid services are low-income and disadvantaged people who have no political clout. And only those within the justice system are seeing the negative effects of the growing number of unrepresented litigants in civil and criminal courts. The Canadian Bar Association (CBA) has a long history of unwavering support for a legal aid system that provides publicly-funded legal services for essential criminal and civil matters. It has directed resources to advocacy work but has seen little positive change from these sustained national and local efforts. Canada is not alone among more economically developed countries struggling to balance the financing of legal services for low-income people with ensuring fairness in a justice system that is supposed to be accessible to everyone. In some jurisdictions a renewed emphasis on social policy goals, such as combating social exclusion and increasing social equality, is driving a regeneration of legal aid policy. Innovative approaches to service delivery and strategies to expand efforts beyond direct legal services are also being put in place. The following sections profile this work. 1 Prepared by Vicki Schmolka, LLB, for the Canadian Bar Association. - 1 - Melina Buckley Moving Forward on Legal Aid III. The Justice Gap: Identifying the Gap Between the Need for and the Availability of Legal Services for Low-Income People 1. Civil law problems Several jurisdictions have undertaken studies to find out more about low-income citizens who have legal problems related to civil law matters. The studies all come to remarkably similar conclusions. A majority of low-income people experience one or more serious legal problems that make their day-to-day lives more difficult. These legal problems usually exist in context with related social problems: economic vulnerability, mental health, physical health, safety and security issues, discrimination, and language barriers. As a result, unresolved legal issues can have a cascading negative effect in people’s lives, causing significant economic, social, and health consequences, particularly additional stress. Physical and mental illnesses have been directly attributed
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